A private cause
of action does not exist in California based on a Penal Code section which
renders it a misdemeanor for a public officer to seize property without
authority, the Ninth U.S. Circuit Court of Appeals held yesterday, in a 2-1
opinion.

The
unpublished majority decision, signed by Judges Ferdinand Francis Fernandez and
John B. Owens, affirms the dismissal of an action by Scarlet Timphony and her
son, James Timphony, over the towing of her automobile in 2014. Their causes of
action against the City of Pasadena—for carjacking and violation of federal
civil rights—had been dismissed earlier, and yesterday’s decision concerned the
scrapping of their remaining claim against the impounding officer, Rafael
Verduzco.

Fernandez
and Owen agreed with District Court Judge George Wu, who ordered the dismissal,
that Verduzco’s qualified immunity protected him against a claim under 42
U.S.C. §1983 for a civil rights violation and that his conduct was not so
outrageous as to authorize an action for intentional infliction of emotional
distress.

Dissenting,
Judge Stephen Reinhardt asserted that the unreasonableness of the officer’s
conduct—in refusing to look at proof that the parking tickets giving rise to
the impoundment had been paid—rose to such a level of unreasonableness as to
strip the officer of immunity.

Under
Vehicle Code § 22651(i), a vehicle may be impounded if the owner has five or
more parking tickets that have been unpaid for 21 days or longer.

Penal Code
Provision

The
Penal Code section in issue was §146 which provides that a “public
officer…under the pretense or color of any process or other legal authority”
commits a misdemeanor if he or she “without a regular process or other lawful
authority” commits certain acts, including seizing “any property.”

The
majority opinion said:

“Under
California law, a criminal statute authorizes private civil suits only where
the legislature intended to create a private right of action or where
compelling reasons of public policy justify the recognition of such a
right….The text and legislative history of §146 do not suggest that the
legislature intended to create a private right of action. The statute simply
creates criminal liability for certain forms of official misbehavior. Nor is
there a compelling reason of public policy to authorize civil suits under § 146
given the remedies available under 42 U.S.C. §1983.”

Qualified Immunity

Fernandez
and Owens went on to agree with Wu that qualified immunity shields Verduzco
against liability under the federal civil rights statute. They wrote:

“Although
towing constitutes a seizure under the Fourth Amendment, it is well established
that it is reasonable if it serves the public purposes of easing traffic flow,
promoting public safety and convenience, or mitigating the risk of vandalism or
theft….A reasonable officer in Verduzco’s situation could believe he was acting
legally in towing the car despite its driver’s protest. A reasonable officer,
moreover, would not believe he was violating the Constitution in refusing to
engage in on-the-spot adjudications of evidence and concluding that any dispute
over the validity of the towing could be determined later by other municipal
authorities.”

It
was on that point that Reinhardt differed with his colleagues, declaring:

“Timphony
was present when his car was being towed. He told the officer that he had paid
the outstanding parking tickets that supposedly authorized the towing, and that
the receipts to prove it were in the glove compartment. The officer refused to
allow him to retrieve those receipts and refused to look at them before
proceeding with the towing. This conduct on the part of the parking enforcement
officer was objectively unreasonable. I would, therefore, reverse the District
Court’s judgment that the officer is entitled to qualified immunity. At the
very least, I would grant the Plaintiffs leave to amend their complaint so that
they could allege facts that would make it even clearer that the officer’s
decision was objectively unreasonable.”

Emotional
Distress

The
majority opinion also said:

“In
order to state a claim for intentional infliction of emotional distress in
California, a plaintiff must allege, among other things, ‘outrageous’ conduct
by the defendant….The conduct at issue here does not rise to that level.”

The
plaintiff’s attorney, Leonard Chaitin, said yesterday that the Timphonys were
“very upset” over the impoundment of the car, owned by the mother and being
permissibly driven on the day in question by the son. He said they were without
use of the automobile for four or five days and “you need a car.”

Chaitin
said that Scarlet Timphony was able to regain possession of her vehicle after
discussing the matter with an assistant city manager, gaining access to the car
in the impoundment lot, retrieving the receipts from the glove compartment, and
showing them to city officials.

“I
expect to petition to have the case heard en banc,” Chaitin noted.

A
request for comment emailed to Assistant Pasadena City Attorney Frank Rhemrev
prompted a phone call from an unidentified woman in the office who said she
could not say anything without authorization.

The
case—originally filed in Los Angeles Superior Court but removed by the city to
U.S. District Court—is Timphony v. City of Pasadena, 15-55144. The panel
opted to decide the case without oral argument.